Scheck v. Houdaille Const. Materials, Inc.

• Decision Date: 20 November 1972
• Citation: 297 A.2d 17,121 N.J.Super. 335
• Parties: Thomas SCHECK, an infant by his guardian ad litem, Harold V. Scheck, Individually, Plaintiff, v. HOUDAILLE CONSTRUCTION MATERIALS, INC., Defendant.
• Court: New Jersey Superior Court

Page 335

121 N.J.Super. 335

297 A.2d 17

Thomas SCHECK, an infant by his guardian ad litem, Harold V Scheck, Individually, Plaintiff, v. HOUDAILLE CONSTRUCTION MATERIALS, INC., Defendant.

Superior Court of New Jersey Law Division.

Nov. 20, 1972.

Rudolph Markowitz, Jersey City, for plaintiff.

Myron J. Bromberg, Morristown, for defendant (Porzio, Bromberg & Newman, Morristown, attorneys).

COLLINS, J.C.C., Temporarily Assigned.

Plaintiff has moved to vacate an order entered by this court on June 18, 1971 which dismissed the first and second counts of his amended complaint. This court has agreed to consider the motion as one pursued in accordance with R. 4:50--1(f), and briefs have accordingly been filed to supplement the oral arguments of counsel.

This matter arises out of injuries suffered by the infant plaintiff when he dove off an apparently abandoned barge located in a body of water on defendant's property. Plaintiff's complaint, as amended by papers filed with the court on May 24, 1971, alleged in its first count that defendant owed a duty to see that the area in question was safe for the uses to which it knew the property was being put by infant trespassers and/or licensees. In his second count plaintiff alleged defendant 'wilfully, wantonly and/or maliciously fail(ed) to guard, or warn against, a dangerous condition, use, structure or activity.' The order entered on June 18, 1971 struck, with prejudice, the entire first count, and struck 'that portion of the second count which charges defendant with 'wanton' failures * * * so that after entry of this order, the allegations of paragraph two of the second count of the amended complaint shall be limited to allegations that defendant 'did wilfully and/or maliciously fail to guard, or warn against, a dangerous condition, use, structure of activity."

This court entered the order in conformance with what it then believed to be the proper interpretation of N.J.S.A. 2A:42A--1 et seq. In reaching its conclusion at that time this court had no interpretative case law available to it, but only the bald wording of the statute. I now feel, in the light of subsequent case law and further research into the applicable legislative history, that this court's initial interpretation of N.J.S.A. 2A:42A--1 et seq. was in error.

The act in question, L.1968, c. 73 (N.J.S.A. 2A:42A--1 et seq.) reads:

An act relating to the liability of owners, lessees and occupants of premises towards persons entering on their premises for sport and recreational activities in certain cases, and repealing chapter 107 of the laws of 1962.

Be it enacted by the Senate and General Assembly of the State of New Jersey:

C.2A:42A--2 Definition.

1. As used in this act 'sport and recreational activities' means and includes: hunting, fishing, trapping, horseback riding, training of dogs, hiking, camping, picnicking, swimming, skating, skiing, sledding, tobogganing and any other outdoor sport, game and recreational activity including practice and instruction in any thereof.

C.2A:42A--3 Limitation of liability of owner, lessee or occupant of premises.

2. Except as provided in section 3 of this act:

a. An owner, lessee or occupant of premises, whether or not posted as provided in section 23:7--7 of the Revised Statutes, owes no duty to keep the premises safe for entry or use by others for sport and recreational activities, or to give warning of any hazardous condition of the land or in connection with the use of any structure or by reason of any activity on such premises to persons entering for such purposes;

b. An owner, lessee or occupant of premises who gives permission to another to enter upon such premises for a sport or recreational activity or purpose does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

C.2A:42A--4 Liability not limited in certain instances.

3. This act shall not limit the liability which would otherwise exist.

a. For willful or malicious failure to guard, or to warn against a dangerous condition, use, structure or activity; or

b. For injury suffered in any case where permission to engage in sport or recreational activity on the premises was granted for a consideration other than the consideration, if any, paid to said landowner by the State; or

c. For injury caused, by acts of persons to whom permission to engage in sport or recreational activity was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owes a duty to keep the premises safe or to warn of danger.

C.2A:42A--1 Repealed.

4. 'An act limiting the liability of landowners of agricultural lands or woodlands for personal injuries to or the death of any person while hunting or fishing upon the landowner's property,' approved July 6, 1962 (P.L.1962, c. 107), is repealed.

C.2A:42A--5 Act does not create liability.

5. Nothing in this act shall create a duty of care or ground of liability for damages for the death or injury to person or property.

6. This act shall take effect July 1, 1968.

The legislative history of this statute is sparse, although the efforts of Arthur S. Applebaum, Assistant Research Director of the New Jersey Legislative Services Agency, Division of Legislative Information and Research, and his staff, have provided all the information that appears to be available in this regard. The court expresses its thanks to Mr. Applebaum and his staff for their valuable assistance.

The statute whose interpretation is currently in issue replaced an earlier legislative enactment, L.1962, c. 107. This earlier law, entitled 'An act limiting the liability of landowners of agricultural lands or woodlands for personal injuries to or the death of any peron while hunting or fishing upon the landowner's property,' was very limited in the scope of the protection which it afforded. In effect it protected only farmers and possessors of forest lands from liability for injuries incurred by persons while hunting or fishing upon their property. In the years from 1965 to 1968 five bills were introduced in our Legislature to modify the provisions and effect of the 1962 statute. While there were apparently no statements filed with these bills, in none of them does any language appear which would indicate to this court that the Legislature intended to abrogate the principles contained within the line of cases headed by Strang v. South Jersey Broadcasting Corp., 9 N.J. 38, 86 A.2d 777 (1952). This court must, therefore, agree with the views expressed by Judge Byrne in his decision in O'Connell v. Forest Hill Field Club, 119 N.J.Super. 317, 291 A.2d 386 (Law Div.1972):

The 1968 act was intended to broaden the former act which protected owners of agricultural land or woodlands from liability for injuries to hunters or fishermen. There is, however, nothing in the legislative history of the act to show that the Legislature intended it to apply to an infant trespasser. The most likely interpretation that could be placed on this act is that it was intended to protect the landowners from liability to sportsmen who come upon their property, be they licensees or trespassers. The original act limited the scope to hunters and fishermen, but the Legislature finding that to be inadequate in this day where people have more leisure time and various recreational activities abound, it enacted the more comprehensive law. Yet no where is there any indication that it should apply to the situation at hand. There is no legislative history, no statement attached to the bill as introduced, no statement by the Governor when the bill was signed into law indicating an intent to substantially modify the line of cases from Strang, supra, to date. (At 320, 291 A.2d at 388.)

Plaintiff has relied in large part upon Judge Byrne's decision, noted above, as the basis for its motion to vacate our previous order. However, as defendant has pointed out, the facts in O'Connell differ markedly from those currently before us. Defendant has particularly emphasized the fact that the infant plaintiff here is 11 years older than the three-year-old child involved in the O'Connell case. Defendant argues, in effect, that the O'Connell child was incapable of forming the intent requisite to bring the exclusions of the act into play, and that in any case the infant trespasser rule is unavailable to a plaintiff of the Scheck boy's age under the circumstances of this case.

In Strang v. South Jersey Broadcasting Co., Supra, 9 N.J. at 45, 86 A.2d at 780, Justice Heher noted that 'The basis of liability is the foreseeability of harm, and the measure of duty is care in proportion to the foreseeable risk.' See also Taylor v. N.J. Highway Authority, 22 N.J. 454, 463, 126 A.2d 313 (1956). In viewing the role which the age of a child may play in the determination of whether the infant trespasser rule is applicable or not our courts have clearly indicated that there are to be no arbitrary cutoff points beyond which its protection is unavailable. Hoff v. Natural Refining Products Co., 38 N.J.Super. 222, 230--236, 118 A.2d 714 (App.Div.1955). See also Dobrzynski v. Liveright, 118 N.J.L. 589, 591, 194 A. 160 (E. & A. 1937); Nichols v. Grunstein, 105 N.J.L. 363, 144 A. 593 (E. & A. 1929).

* * * If the justification for expanding the liability of the possessor of land as to trespassing children is founded on the 'immaturity' of children and their consequent want of the 'discretion and judgment essential to their own security,' there is no place for the assumption in law that any particular child, in the absence of conclusive evidence thereof, has shed his immaturity at any particular age. In this domain the law may wisely find its guide in the...